unit 1 – the south african legal system advocate samuels [email protected] business law
TRANSCRIPT
Sources of law• Constitution• Section 2 – Constitution od the supreme law of South Africa, any law, custom or common law
inconsistent with the Constitution is invalid• Considered to be an authoritative source
• Legislation• Binding rules passed by a competent authority, such as Parliament, provincial governments
and municipalities• Considered to be an authoritative source
• Customary law• Social practices and customs which had been developed over the ages and are observed by
society and passed down from generation to generation• Considered to be an authoritative source
• Judgments of Courts• Known as judicial precedent• Decisions of superior courts bind lower courts (Stare decisis)• Considered to be an authoritative source
• Old authorities• A variety of sources form our common law• These sources are: Roman law; Roman-Dutch law and English
law• Considered to be an authoritative source
• Foreign law• The law of other countries which may be considered by our
courts for guidance and is only of persuasive value
• Textbooks and Law journals• By a variety of legal experts (advocates, attorneys,
academics) are considered to be persuasive
COURT STRUCTURE
Provided for in S166 of the Constitution:
SUPERIOR / UPPER COURTS
Constitutional Court
Supreme Court of Appeal
High Courts
(including any high court of appeals established by an Act of
Parliament)
INFERIOR / LOWER COURTS
Magistrates’ Courts and
Any other court established by an Act of Parliament with a
status similar to the High Courts or the Magistrates’ Courts 4
GEOGRAPHICAL AREA
Each court has jurisdiction within a particular geographical area in the country
The Constitutional Court
• Has jurisdiction over entire geographical area of South Africa
• Seat in Johannesburg
Supreme Court of Appeal
• Has jurisdiction within entire geographical area of South Africa
• Seat in Bloemfontein
High Courts
• Provincial and Local divisions
• Concurrent jurisdiction within that area
• Circuit courts?
Lower Courts (Magistrates’ Courts)
• Regional and District5
HOW DO YOU DETERMINE THE CORRECT COURT IN WHICH A SPECIFIC CASE WILL BE HEARD?
• General principle: distinguish between 2 areas of competency:
• Hear appeals and review cases
• Function as a court of first instance
JURISDICTION
The competence of a particular court to hear a specific matter / case
Jurisdiction - influenced by three factors
•Geographical area
•Type of matter being heard
•Amount of compensation / punishment
6
TYPE OF CASE AND AMOUNT OF COMPENSATION OR PUNISHMENT
Distinction between criminal, civil and constitutional matters
Criminal - court’s jurisdiction determined by :
• kind of offence and
• possible sentence
Civil - jurisdiction determined by:
• amount claimed
• the nature of the relief sought
Constitutional matters
7
Constitutional Court• S167 of the Constitution• The highest court in all constitutional matters• Hears appeals from HC and SCA• Presiding officers: Chief Justice, Deputy Chief Justice, + 9 Judges• Section 2• Section 39(2)• Bill of Rights• Rights may be limited
Supreme Court of Appeal• S168 of the Constitution
• Presiding officers: President, Deputy President and judges of appeal
• Has jurisdiction over the whole geographical area of South Africa
• Hears all matters, except those in exclusive jurisdiction of CC
• Functions only as a court of appeal
• Hears appeals from the High Courts
High CourtHC’s jurisdiction as a court of first instance:Criminal matters
• Can try any criminal offence but in practice only serious offences
• Can impose sentence of more than 15 years and a fine of R300 000
Civil cases
• If claim exceeds R100 000
• If claim is specific performance without damages as alternative
• If matters involves issues of status
Constitutional matters
• May decide any constitutional matter except that which falls within exclusive jurisdiction of the CC
• Confirmation by the CC of decisions regarding constitutional matters
10
Magistrate’s court - RegionalCriminal jurisdiction of MC
• Can try any criminal offence, but not treason
• S92 of the MCA – punishment
• limited to 15 years
• fine not exceeding R300 000
Civil jurisdiction of MC
• Jurisdiction of Regional Courts Amendment Act 31 of 2008 (effect on 9 August 2010)
• Civil jurisdiction granted due to access, costs, backlogs of cases
• Family disputes
• Disputes over movable and immovable property (R100 000 – R300 000)
• Credit Agreements (R100 000 – R300 000)
• Road Accident Fund claims (R100 000 – R300 000)
11
Magistrate’s Court - District• Has jurisdiction within a particular magisterial district
• S170 of the Constitution
• Does not hear appeals or review cases
Criminal matters
• Has jurisdiction in all criminal matters except treason, murder and rape
• S92 of MCA – punishment
• Limited to a sentence of 3 years
• fine of R60 000
Civil cases
• Can only hear matters where amount of claim is less than R 100 000
• May hear matter where claim is one for specific performance with damages (less than R 100 000) in the alternative
• If amount exceeds R 100 000 then parties may
• Consent in writing to increased jurisdiction of court
• Consent to the abandonment of the amount exceeding R100 000 12
Other courts• Small claims court• Jurisdictions in certain civil matters• May not hear matters exceeding R12 000 in value• Aim: To provide simple, expedient, cost effective legal remedies
for uncomplicated, simple matters which can be resolved easily• No legal representation
• Civil Magistrates Courts• Jurisdiction in terms of civil claims and civil matters – cannot
hear criminal matters• Claims not exceeding R100 000• May not hear maters relating to the status of an individual e.g
insolvency or divorce• All matters outside this court = High Court
Doctrine of Stare Decisis• Known as ‘judge made law’• Doctrine of precedent – stare decisis• Previous court decisions provide reliable guidelines to determine what the law in a similar case would be• This means that all decisions binds lower courts and court will be bound by its own decisions in prior matters• Decisions are reports in SA Law Reports (Juta and Butterworths)• Helps create legal certainty and helps attorneys and clients to predict what a possible outcome of their case may be
Revision exercise• List the courts in South Africa and give examples of the types of matters each court may hear.• List sources and indicate whether they are authoritative or persuasive• Explain the principle of stare decisis• Name the most important piece of legislation in South Africa